In my life as a litigator, I have noticed that there is often a disconnect between mediator, arbitrator, judge, attorney, and client. Although the attorney and his or her client may have the same goal of resolution, they often have different motivations for getting there. Sometimes the client has a rightful claim, one for which the attorney is biting at the bit to go to trial, but also one whose prosecution or defense is costing more time and money than the client wishes to spend. When you get to your chosen mediator for settlement discussions, he or she just wants to make a deal. And if you end up before a judge or arbitrator, maybe he or she just wants to render a quick decision so that they can move on to the next case. Gone is the opportunity to be fully heard, and left in its place is a bad experience with our system of justice.
Vineyard Legal Services provides litigation, mediation, and arbitration services. Each service is separate of the others, but shares a common theme – the resolution of legal disputes.
As a practicing attorney and litigator, it is my duty to advise my clients of the risks and benefits inherent to any scenario for which they may seek legal advice. Sometimes people get themselves into legal disputes that can only be resolved through litigation. As a litigator, I pride myself on keeping the clients’ interests primary and advocating on their behalf through superior research, analysis, and oral and written argument. Litigation can end in a variety of ways: settlements, dispositive motions, judgments provided by a judge or jury, or even through appeal. Vineyard Legal Services will analyze and discuss with you the possibilities, advantages, and risks with each.
A majority of legal disputes resolve themselves through negotiation. Mediation offers the parties the opportunity to negotiate a compromise through a neutral third party, without the risk of a judge, arbitrator, or jury taking the decision-making process away from the parties. At trial or in arbitration, issues you believe to be material to a dispute may be deemed irrelevant or excluded by the Rules of Evidence. Mediation temporarily forecloses this hostility to one’s claims or defenses and permits the parties control of any resolution. And at a minimum, mediation permits the parties to cut losses and do simple arithmetic regarding future risks and costs.
Mediators, moreso than arbitrators, are often stereotyped by their personalities. There are, just to name a few, the soft and hard sellers, the pitbull, the academic, the communicator, the negotiator, and the shuttle diplomat. While the resolution style of each personality is different, the fact of the matter is that many mediators forget that the foundation of any dispute are the legal claims – and the defenses thereto – whether arising from a breach of contract, professional malpractice, a bad faith denial of insurance coverage, or any other claim for which a party seeks redress. To many mediators, getting bogged down in the legalities cuts down on negotiation time. While this is true to some extent, an inclination to immediately jump into dollars and cents negotiations, without permitting the parties to argue their legal claims and defenses, undermines the process. First, the mediator does not have a concrete foundation by which to assess the parties’ negotiating needs. Second, the parties feel ignored.
A mediator’s most important characteristics are trust, respect, and integrity. Without these, he or she will have a difficult time convincing anyone that there is a resolution to a dispute. The mediator must also be flexible, communicative, and creative. Not all disputes resolve around an exchange of money, and the facts and law supporting a claim or dispute do not magically stop developing because the parties walked into the mediator’s office. Whether it is a 2 or a 20-party dispute, a good mediator builds trust with everyone and endeavors to make the puzzle pieces fit into the broader big picture.
As an attorney, I have mediated numerous multi-party disputes with hundreds of millions of dollars at stake for my clients. As a mediator, I have identified and resolved the difficulties that opposing parties face in pursuing resolution. I understand the push and pull of cobbling together a consensus. Bridges have to be built, and I have constructed my fair share.
Then there is arbitration. Not all disputes settle. Some disputes have to be adjudicated for a variety of reasons, ranging from business necessity to the simple human concept of principle. Arbitration has developed to provide a quick and cost-efficient means by which to fully and finally resolve a dispute. However, because arbitration generally falls outside judicial review, and because it tends to be the business world that requires arbitration for the resolution of disputes, the public has grown suspicious of the process. Further, the almost-confidential nature of arbitration, combined with the court’s general deference to arbitrator decisions, have permitted the occasional variance from established law, while also effectively hiding a wide range of competencies in the adjudication of claims and defenses.
As an arbitrator, my process starts with the parties. They dictate the focus of adjudication, and their non-legal concerns (e.g., financial and confidentiality) are paramount in my efforts. Efficiency and competency are my goals, and I give each party’s claims and defenses equal attention. I require professionalism among the attorneys and do not abide by litigation gamesmanship of any kind. If this sounds like your kind of forum, please do contact me to arbitrate your future disputes. I am able to abide by a variety of procedural rules, whether promulgated by the AAA, the Florida or Georgia legislatures, the parties, or the terms of an individual contract.
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